Article excerpt

Threats and incitement are distinct but closely related categories of speech unprotected by the First Amendment. In 1969, the Supreme Court handed down Watts v. United States, (1) which held that "true threats" are unprotected speech, (2) and Brandenburg v. Ohio, (3) which identified incitement as an unprotected category but defined that category in a narrow, highly speech-protective way. (4) However, courts struggle when faced with cases that contain elements of both threats and incitement. Recently, in United States v. Turner, (5) the Second Circuit affirmed talk show host Harold Turner's conviction under a statute that criminalizes threatening a federal judge after Turner called for the deaths of Seventh Circuit Judges Posner, Easterbrook, and Bauer on his blog. (6) The facts of the case suggest that the court should have applied the Brandenburg incitement test instead of treating the speech as a threat. By failing to do so, the court missed an opportunity to create precedent illustrating a Brandenburg analysis in an ambiguous context and blurred the categories of threats and incitement.

Harold Turner operated a website and hosted a talk radio show that attracted the interest of violent white supremacist groups. (7) On June 2, 2009, Turner published a blog post on his website regarding the Seventh Circuit's decision in National Rifle Ass'n of America v. City of Chicago, (8) which held that the Second Amendment does not apply to the states. (9) Turner wrote that Judges Posner, Easterbrook, and Bauer "deserve[d] to be killed" for their decision. (10) Invoking Thomas Jefferson, Turner wrote that the blood of these judges would "replenish the tree of liberty." (11) Turner suggested that the judges "didn't get the hint" (12) sent by a gunman who had murdered the family of another federal judge in Chicago, Judge Joan Lefkow, and even offered those murders as "proof" of his power, since he had written that Judge Lefkow was "worthy of death" shortly before the tragedy. (13) The next day, Turner posted the names and photographs of the three judges, a photograph and map of their courthouse marked to show the location of "[a]nti-truck bomb barriers," and the room numbers of their chambers. (14) Turner was charged under 18 U.S.C. [section] 115(a)(1)(B), which prohibits threatening to assault or murder a federal judge with the intent "to impede, intimidate, or interfere with" the judge in his or her duties or "to retaliate against such ... judge ... on account of the performance of official duties." (15)

The case was assigned to Judge Walter of the Western District of Louisiana rather than to a district judge in the Seventh Circuit due to the victims' identities. (16) Judge Walter granted Turner's motion to transfer the case to the Eastern District of New York. (17) The New York district court denied Turner's motion for a judgment of acquittal, finding "that [his] actions [were] sufficient to incite or urge lawlessness" and that Turner "provided exact information to facilitate the threat" by posting the photographs, room numbers, and map. (18) It instructed the jury that Turner's statements were to be evaluated from the perspective of a reasonable person reading them who was familiar with their context. (19) The jury returned a guilty verdict. (20)

The Second Circuit affirmed the conviction. (21) Writing for the panel, Judge Livingston (22) held that the conviction was supported by sufficient evidence, the district court's jury instructions contained no prejudicial error, and no other improper government statements or evidentiary rulings prejudiced the trial. (23)

First, Judge Livingston rejected Turner's contention that the evidence was insufficient to sustain a conviction. (24) She noted that the Second Circuit applies an objective test in threats cases, asking "whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury. …